Gregory v. Rosenhaus, NO. 1:95CV139-B-D (N.D. Miss. 2/__/1996)
| Decision Date | 01 February 1996 |
| Docket Number | NO. 1:95CV139-B-D.,1:95CV139-B-D. |
| Parties | JOHN A. GREGORY, PLAINTIFF, v. DREW ROSENHAUS, DEFENDANT. |
| Court | U.S. District Court — Northern District of Mississippi |
This cause comes before the court on the defendant's motion to dismiss for lack of in personam jurisdiction and alternative motion to dismiss for failure to state a claim upon which relief can be granted. The court has duly considered the parties' memoranda and exhibits and is ready to rule.
On December 26, 1995, the defendant filed a motion for leave to file supplemental affidavits. The plaintiff opposes the motion on the ground that the supplemental affidavits do not pertain to transactions, occurrences or events which have occurred since the submission of the defendant's rebuttal brief. See Fed. R. Civ. P. 15(d). The defendant seeks leave to file the supplemental affidavits "for purposes of clarification and in response to Plaintiff's Affidavits." The motion was filed forty days after the rebuttal brief was served and after the court had studied the briefs and begun writing this opinion. The court finds that the motion is not well taken since it gives no explanation for the failure to submit the affidavits contemporaneously with the rebuttal brief. The defendant was even granted an extension of time to serve the rebuttal brief. Therefore, the defendant's motion for leave to file supplemental affidavits should be denied.
The plaintiff must make a prima facie showing that the defendant falls within the reach of the state long-arm statute and that exercise of personal jurisdiction over the defendant is permissible under the fourteenth amendment due process clause. Dalton v. R&W Marine Inc., 897 F.2d 1359 (5th Cir. 1990); Thompson v. Chrysler Motors Corp., 755 F.2d 1162, 1165-66 (5th Cir. 1985). The Mississippi long-arm statute reads in part:
Any nonresident person, firm, general or limited partnership, or any foreign or other corporation not qualified under the Constitution and laws of this state as to doing business herein, who shall make a contract with a resident of this state to be performed in whole or in part by any party in this state, or who shall commit a tort in whole or in part in this state against a resident or nonresident of this state, or who shall do any business or perform any character of work or service in this state, shall by such act or acts be deemed to be doing business in Mississippi and shall thereby be subjected to the jurisdiction of the courts of this state.
Miss. Code Ann. § 13-3-57.
The plaintiff, a National Football League (NFL) advisor, alleges wrongful interference (no pun intended) by the defendant with the written contract between NFL player Timothy Bowens and the plaintiff in his capacity as a NFL contract advisor. The contract entitled "Contract Representation Agreement" [the plaintiff's contract], executed on March 5, 1994, provides that the plaintiff "agrees to represent, advise, counsel, and assist Player in the negotiation, execution, and enforcement of his playing contract(s) in the National Football League." The contract further sets forth the plaintiff's fee for any successful negotiation of a NFL player contract signed by Bowens.
The defendant's affidavit states that he is a permanent resident of Florida with a principal place of business in Florida and at no time has maintained any business or office in Mississippi. His affidavit further states that he initially met with Bowens in late April, 1994 in Florida when Bowens approached him. Bowens' affidavit states that he initially approached the defendant after terminating the plaintiff's contract. Bowens states that he signed a contract representation agreement with the defendant [the defendant's contract] in Florida on April 30, 1994. The defendant states that he visited Mississippi on only two occasions and they were after Bowens executed the defendant's contract. Bowens states that he met with the defendant on two occasions in Mississippi after he terminated the plaintiff's contract.1 However, the uncontroverted affidavit of Sue Blankenship, the plaintiff's secretary, states that on May 3, 1994 Bowens, accompanied by the defendant, hand delivered a notice of termination of the plaintiff's contract in the plaintiff's Okolona, Mississippi office. The uncontroverted affidavit of the plaintiff states that on May 4, 1994, he received Bowens' notice of termination dated May 2, 1994 and had received no prior notice.
The defendant asserts that the allegation of the plaintiff's economic loss in Mississippi is insufficient. Under the tort prong of the Mississippi long-arm statute, a tort occurs `where and when the actual injury takes place, not at the place of the economic consequences of the injury.' Falco Lime, Inc. v. Tide Towing Co., 779 F. Supp. 58, 61 (N.D. Miss. 1991) (quoting Cycles, Ltd. v. W.J. Digby, Inc., 889 F.2d 612, 619 (5th Cir. 1989)). The defendant does not dispute that he accompanied Bowens when he delivered his notice of termination to the plaintiff's office in Mississippi. The defendant contends that this fact, standing alone, fails to show that he committed a tort in Mississippi. However, the plaintiff must show only that the defendant committed the alleged tort in part in Mississippi. The defendant's involvement or participation in Bowens' termination of the plaintiff's contract can constitute an element of the alleged tortious interference. Any injury caused by the tort of contractual interference, if proved, occurred, at least in part, in the plaintiff's Mississippi office at the time of delivery of the notice of termination. Therefore, the court finds that the plaintiff has made a prima facie showing that the alleged tort may have been committed in part in Mississippi and therefore falls within the reach of the long-arm statute.
The due process issue requires a finding that the nonresident defendant has (1) purposefully established "minimum contacts" with the forum state and (2) that entertainment of the suit against the nonresident would not offend "traditional notions of fair play and substantial justice." Bullion v. Gillespie, 895 F. 2d 213, 216 (5th Cir. 1990) (quoting Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). "Minimum contacts with the forum state may arise incident to the federal court's `general' or `specific' jurisdiction over the nonresident defendant." Falco Lime, Inc., 779 F. Supp. at 62. There is no showing of general jurisdiction over the defendant in the absence of `continuous and systematic contacts' with Mississippi. Id. at 62 (quoting Interfirst Bank Clifton v. Ferandez, 844 F.2d 279, 283 (5th Cir.), op. amended on other grounds, 853 F.2d 292 (5th Cir. 1988)). The issue is whether the defendant's two visits to Mississippi constitute sufficient contacts giving rise to or related to the alleged tort, with respect to specific jurisdiction over the defendant. Falco Lime, Inc., 779 F. Supp. at 62. The court must consider the number of contacts in conjunction with the nature and quality of the contacts to determine whether the nonresident defendant purposefully availed himself of the privilege of conducting his activities in Mississippi. Id. at 62-63.
A reasonable inference may be drawn that the defendant's accompaniment of Bowens to the plaintiff's office on May 3, 1994 was pursuant to the termination of the plaintiff's contract. The fact that Bowens had previously executed the defendant's contract does not in any way negate the possibility of the defendant's tortious interference with the plaintiff's contract in Mississippi. According to Bowens, the defendant's two visits to Mississippi occurred after Bowens terminated the plaintiff's contract. This assertion is in conflict with the undisputed presence of the defendant in the plaintiff's office on May 3, 1994. The defendant admits that he has visited Mississippi twice and does not state the reasons for either visit. Bowens' affidavit establishes that the defendant met with him in Mississippi on two occasions. Assuming arguendo that the May 3 visit was one of the defendant's two visits to Mississippi, a reasonable inference may be drawn that the other visit also pertained to the furtherance of his contractual relationship with Bowens and the status of the plaintiff's contract. A connection between the defendant's contacts to Mississippi and the alleged tort may also be reasonably inferred from paragraph 7 of Bowens' affidavit:
At no time did [the defendant] and I meet in the State of Mississippi with regard to the prospect of [the defendant] becoming my agent or to sign a National Football League Professional Association Contract until after I terminated my contract with [the plaintiff].
The court finds that the defendant had sufficient contacts with Mississippi of a character indicative of his purposeful availment "of the privilege of conducting activities" in this forum, "thus invoking the benefits and protections of its laws." Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474-75 (1985) (quoting Hanson v. Denckla, 357 U.S. 235, 253 (1958)). The court further finds nothing unfair in subjecting the defendant to the jurisdiction of this court. Accordingly, the motion to dismiss for lack of personal jurisdiction should be denied.
The defendant alternatively moves to dismiss for failure to state a claim upon which relief can be granted pursuant to Rule 12 (b)(6) of the Federal Rules of Civil Procedure. Since the affidavits submitted by both parties pertain to not only the issue of personal jurisdiction but also the viability of the plaintiff's claim, the court has construed this motion as a motion for summary judgment pursuant to Rule 12(b). See Clark v. Amoco Production Co., 794 F.2d 967, 972 (5th Cir. 1986) (...
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